The Laboratories of Democracy are Growing Stronger and More Republican

“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. — U.S. Supreme Court Justice Louis Brandeis in New State Ice Co. v. Liebmann, March 21, 1932.

I use the Brandeis quote to begin my comments of the new powers of the state legislatures after the 2014 election. I must, however, temper Brandeis’ comments in his dissent in New State Ice Co. v. Liebmann with a commentary by Michael S. Greve in his 2001 article in American Enterprise Institute. After all Brandeis was a liberal progressive and statist.

“Louis D. Brandeis favored federalist “experimentation in things social and economic” as a means to progressive, statist ends. Even his hagiographers concede that Brandeis would have held a very different view of state economic experimentation and its judicial review had those experiments run against, say, trade unions.

Modern justices have tended to overlook, or perhaps ignore, the instrumental and ultimately half-hearted nature of Brandeis’s federalist commitment. For example, they have quoted the “laboratory” dictum in the course of celebrating federalism’s virtues of diversity and attentiveness to local circumstances. Brandeis’s view of state experimentation, however, was entirely disconnected from those notions and instead emphasized its value as a step toward federal legislation. Similarly, profederalist justices have quoted the New State Ice dissent in opinions that reject, on Tenth Amendment grounds, federal impositions on state governments. Brandeis, as seen, did not believe in Tenth Amendment or any other constitutional federalism constraints.

One could easily live with an occasional out-of-context quotation. What distresses is the modern Supreme Court’s sustained Brandeisian tendency of subordinating federalism to progressive dictates and statist presumptions. The Court has empowered and protected state governments through creative interpretations of the Tenth and Eleventh Amendments. It has, however, refrained from resurrecting constitutional doctrines—foremost, a robust enumerated powers doctrine—that would discipline state governments by forcing them to compete for productive citizens. On the rare occasions that the Court has limited enumerated powers, it first reassured itself that the states can and will in fact regulate the problem at hand—gun possession on school grounds or sexual violence.

On issues that we now call “social,” the Court acts as a superintendent of experimentation. Untoward experiments, such as operating an all-male college, are verboten. Experiments of the right kind are not; in a way they are affirmatively required. If states fail to liberalize, with sufficient speed, laws governing sexual and life-and-death matters, the Supreme Court will move them along; witness Roe v. Wade.”

This “Laboratories of Democracy” concept explains how within the federal framework, there exists a system of state autonomy where state and local governments act as social “laboratories,” where laws and policies are created and tested at the state level of the democratic system, in a manner similar (in theory, at least) to the scientific method.

The Tenth Amendment of the United States Constitution provides that “all powers not delegated to the United States by the Constitution, nor prohibited by it to [from] the States, are reserved to the States respectively, or to the people.” This is a basis for the "Laboratories of Democracy" concept, because the Tenth Amendment assigns most day-to-day governance responsibilities, including general "police power", to the state and local governments. Because there are 50 semi-autonomous states, different policies can be enacted and tested at the state level without directly affecting the entire country. As a result, a diverse patchwork of state-level government practices is created. If any one or more of those policies are successful, they can be expanded to the national level by acts of Congress. For example, Massachusetts established a health care reform law in 2006 that became the model for the subsequent Affordable Care Act at the national level in 2010.

Since the 1930s, and more so in the following decades, the "laboratories of democracy" concept has been undercut somewhat by the growth of federal power under expansive interpretations of the Interstate Commerce Clause, which grants the federal government the power to regulate interstate commerce. See, for example, Wickard v. Filburn, 317 U.S. 111 (1942) and Gonzales v. Raich, 545 U.S. 1 (2005).

The Tenth Amendment may be stated as the cornerstone of Federalism. It was added to the Bill of Rights by our Founders. James Madison was not in favor of the Tenth Amendment as he believed the enumerated powers expressed in Article I, Section 8 of the Constitution would suffice to curb the power of the federal government. Madison finally succumbed to the wishes of the state conventions when he stated:

“I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.”

The states decided to ratify the Tenth Amendment, and thus declined to signal that there are unenumerated powers in addition to unenumerated rights The amendment rendered unambiguous what had previously been at most a mere suggestion or implication.

This brings me to the focus of this blog — the growing power of the Republican Party in state legislatures and how this may begin to tamper the coercive and over reaching power of the federal government.

Today after last Tuesday’s election there are ninety-eight partisan state legislative chambers in our nation. (Nebraska has a unicameral and nonpartisan legislature.) Not all state legislative chambers had elections this November, but of the seventy-seven state legislative chambers that did have elections, Republicans gained seats in sixty-one, while losing seats in only ten.

This translated into shifting control of ten legislative chambers from Democrat to Republican and included: the State Senate in Washington, Colorado, Nevada, Maine, and New York and the State House of Representatives in New Mexico, Nevada, Minnesota, West Virginia, and New Hampshire. Republican power in state legislatures is at the highest point in a century, both in the number of chambers controlled and also in the number of Republicans in state legislature — important facts that tend to be submerged in higher profile races.

Looking at particular regions, the impact of these elections takes new meaning. In the five-state “Great Lakes” region of Michigan, Wisconsin, Illinois, Ohio, and Indiana, Republicans made gains in state legislative chambers of each state and did not lose seats in any of the ten chambers. In the five legislative chambers in neighboring Minnesota, Iowa, and Missouri that faced voters this midterm, Republicans made gains in all five.

In the Rocky Mountain purple states of Nevada, Colorado, and New Mexico, Republicans gained the Colorado Senate, the New Mexico House, the Nevada Senate, and the Nevada House without losing seats in any of the state legislative chambers. Those gains matter. Governor Martinez will have one house of the New Mexico legislature to help her push her conservative agenda; Governor Sandoval in Nevada goes from working with two Democrat houses of the legislature to a Republican legislature; and Colorado’s Democrat governor, who won a close race, now has to work with a Republican Colorado House.

In the South, in red states thought to be trending purple — Florida, North Carolina, and Georgia — Republicans gained seats in three legislative chambers and lost a seat in one, and the other two were unchanged. Despite the hopes Democrats have expressed of becoming competitive in the South, Republicans now control virtually every state legislative chamber there. Eight of those states had state legislative elections, and in those sixteen legislative chambers, Republicans gained seats in twelve chambers and lost seats in one.

The long-term impact of Republican power in the South and Rocky Mountain areas is enhanced by the fact that these are also the two fastest-growing areas of the country. These are the states that will have more congressmen after the next census, and Republican legislatures will be drawing the new congressional districts.

But even in the Democrat stronghold of the Northeast, Republicans did well. Republican governor Corbett of Pennsylvania lost re-election, but Republicans increased their existing majorities in both houses of the Pennsylvania legislature. Republicans came close to winning the governor’s race in New Hampshire, the only purple state in New England, but Republicans actually did capture the New Hampshire lower legislative chamber and increased the existing majority in the upper chamber.

Republicans now, for the first time in a while, have the power to stop Democrats in states like New York (which now has a Republican Senate) and Maryland, where the unexpected victory of Republican Larry Hogan in the gubernatorial race was complemented by the gain of eight seats in the Maryland House, enough to sustain a veto by Hogan. Republican gains in the Illinois Senate mean that incoming Republican Governor Rauner will now have both houses able to sustain his veto. Governor Dayton will have to work with a Republican Minnesota House.

Perhaps the most important consequence will be in those states where Republicans in state government have shown real gumption. Scott Walker, of course, tops the list. Increased Republican majorities in both houses of his legislature, along with his own re-election open the door for even more revolutionary reforms, which will no doubt include public sector pensions and school choice.. Re-elected Republican governors in Michigan, Ohio, and Florida have bigger Republican legislative majorities, which ought to embolden these governors to push hard reforms of public employee unions, educational systems, and voter integrity, as well as tort reform and other vital issues.

It also should be noted that the state houses (31) and state legislatures controlled by Republicans will no doubt play a major role in the 2016 presidential elections. If these governors and legislatures do good work for the people of their states they will have a great deal of influence in deciding 2016 presidential vote. Their focus should be on balanced budgets, eliminated deficits, increasing employment with business friendly policies and regulations, and repairing infrastructure. Scott Walker of Wisconsin, Susanna Martinez of New Mexico, Nikki Haley of South Carolina, and John Kasich of Ohio are showing the way.

Finally I think that there are a few points that can be made about the 2014 midterms.

After repeatedly putting off any action on immigration until after the election, Obama announced just prior to the election that he would use his pen to enact immigration reform. This served to motivate the Hispanic vote, but not in the way he intended. Exit polls show that 36% of Hispanics voted Republican. This is a huge change from 2012, when Hispanics voted Democrat at over 70%. It turns out that quite a few law-abiding conservative Hispanics are not fans of illegal immigration or late-term abortion.

Obama said in a speech on Oct. 2, "Make no mistake: my policies are on the ballot." I believe he thought that he could motivate that same base that re-elected him in 2012 to go to the polls by making the election about himself. Think about it. Up to that point in the election cycle, he had stayed in the background. His national poll numbers were dipping below 40%. The Democrat incumbents had run away from him and were trying their best to disassociate themselves from their voting records. Why would Obama, at that point, reinsert himself into the race? Because he was convinced that he could motivate his base to go to the polls to vote Democrat by making the election about him.

This turned out to be a huge miscalculation. It handed the Republicans powerful ammunition just 30 days prior to the election.

In his press conference Wednesday, Obama implied that since two thirds of the electorate didn't vote, he still had a mandate from the 2012 electorate to execute his vision. I disagree. Let's look at who didn't vote. Obama's black base didn't vote. Why? I think his black base is angry with him. They can't bring themselves to vote Republican, so what is the alternative? How has the black community expressed their dissatisfaction in previous elections? They stay home. So Obama's claim that he still has a mandate is hogwash. Everyone is mad, including his base.

The combined shift of the Hispanic vote and the unhappy black community is a real problem for the Democrats. Do you think that the black vote will show up for Hillary? I don't think so. They're mad. They're mad enough to not show up for Obama, even though he told them that he was on the ballot. If the Democrats can't figure out a way to regain the lost Hispanic vote and convince their black base that they need to vote, then 2016 will be another tough year for them.

There will doubtless be more “gridlock” in Washington. Obama is just too arrogant and ideological for anything else. But the chance for dramatic change — something to show America in 2016 — is in Republican hands in many states now. Surely the only counsel now to these Republicans is stay united and be bold.

Will This Election Matter?

"No compact among men ... can be pronounced everlasting and inviolable, and if I may so express myself, that no wall of words, that no mound of parchment can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other." — George Washington, draft of first Inaugural Address, 1789

Much has been said and predicted about and for this upcoming midterm national election. The pundits and pollsters are falling over themselves to toss out predictions as to how many seats in the Senate and House the Republicans will take. The party “strategists” are doing their job of pushing the party’s talking points and spinning their message to potential voters.

The long-awaited midterm elections are but days away, and Republican optimism is beginning to cross the border into giddiness. Last week RedState’s Erick Erickson all but declared the Senate won, despite many close races:

“With the President’s numbers so bad and the GOP’s numbers so good, it makes you wonder what is going on in the state level polling that shows so many races so close. That national polling trickles down to states.

Perhaps there is some over-compensation and over-correction that is, ironically, going to cause a lot of pollsters to repeat the mistakes of 2012. There is no evidence that the voters who vote for Barack Obama are the Democrats’ voters. They are Barack Obama’s voters.

They did not show up for him in 2010 and the hysteria and race baiting the Democrats have stooped to in these final weeks suggests they know these voters will not show up for him in 2014 either.

The end of Barack Obama’s Presidency approaches.”

And at Hot Air, Ed Morrissey has been predicting a wave that will finish off the Democrat majority in the Senate for some time. After looking at a round of polling showing GOP fortunes improving in the home stretch, his co-blogger Noah Rothman declared a “universal shift in momentum toward Republican candidates and away from Democrats and the independents who would caucus with them if elected. A late-breaking wave is cresting.”

Erickson, Morrissey, and Rothman aren’t alone. The conservative punditocracy seems almost united in its expectation of a coming Republican Senate, and there are even predictions that the GOP will not just sneak back into power, but will hold a majority with breathing room when the smoke clears.

The GOP currently sits at 45 seats in the Senate, but gains in non-competitive races in West Virginia and Montana — where the Democrats have quite possibly the worst candidate for the U.S. Senate in modern memory — are a given. Despite some buzz earlier in October to the contrary, a Republican pickup in South Dakota now looks more likely than not. And Republicans hold leads in Arkansas, Alaska, Louisiana, and Colorado that appear safe enough for cautious optimism. Additionally, Iowa looks like a close victory for the GOP. That lineup would put the party at 53 seats. Then there are potential GOP upsets in North Carolina or New Hampshire, where Democrat incumbents are polling at significantly less than the magic number of 50 percent.

A Republican sweep, the wave election some predict, could carry those last two, push back the Democratic challengers in the red states up for grabs such as Kansas and Georgia, and run the GOP’s total up to 55 seats. And if the number gets that big, then it might even get bigger: Maine’s independent Senator Angus King might note the shifting of the winds and caucus with the Rs rather than the Ds (the Republican governor Paul LePage is now polling at a significant advantage, indicating King might be safer in the new majority in the near future) and it’s not impossible that West Virginia Democrat Joe Manchin, increasingly alienated from his own party, might decide to flip.

In Colorado, Mark Udall has been dubbed “Mark Uterus” for his incessant reliance on “War on Women” rhetoric against his Republican opponent Cory Gardner. So far a campaign on free contraception has failed to deliver on expectations, particularly when Gardner began to call for birth control to be sold over the counter. Democratic National Committee chairwoman Debbie Wasserman Schultz earned the disgust of even many in the mainstream media for accusing, at least figuratively, Wisconsin governor Scott Walker of being an abuser of women.

In Louisiana, Democrats are using shadowy union-funded PACs to push black turnout through mailers and door-hangers. In North Carolina and Georgia, the appeal is even more naked — complete with imagery of lynchings and references to the Ferguson riots. A Florida-based, SEIU-funded group is selling bulletproof vests as a fundraiser to support a web ad telling black voters that unless they pull the lever for Democrats the police will shoot their children.

The turnout will be low, probably less than 35% of eligible voters, and the party that can generate the most passion in their supporters will probably win. In some states the election is a walk-away for the Republicans and in other states it’s too close to call. But the trend is towards the Republican Party due to the unpopularity of President Barack Obama. He has been laden with issues and scandals demonstrating his lack of leadership. Issues and scandals such as the; The IRS’s illegal attacking conservative groups, Fast and Furious, the Bengasi debacle, the handling of the Ebola virus, the rise of ISIS in Iraq and Syria, the aggressions of Russia in the Ukraine, the atrocious performance of the VA, the mass invasion of illegal immigrants across our southern border, and the targeting of reporters of FOX News. Yes, the man who, in 2008 at Mile High Stadium in Denver in front of Greek Columns and 200,000 screaming Germans at the Brandenburg Gate in Berlin, had the most popularity of and Democratic candidate in decades. Now his popularity ratings are dipping below 40% and the hope and change man is not a welcome guest on the campaign trail of many Democrats.

According to a recent article in the Washington Post:

“Democrats have been running from Barack Obama for some time, but now they’re already beginning to point fingers over the looming Election Day debacle. “This off-year election has become almost entirely a referendum on the president,” said one Democrat consultant. “It’s not just anger at [ObamaCare]. He has become, in my opinion wrongly, the symbol of dysfunction in Washington. That has led to a demoralized Democratic base, energized Republicans and those in the middle have an easy way of venting their frustration, and that is to punish the president’s party.” Another consultant added, “It is not all Obama but a lot of it is.” Part of the problem is that Obama thinks it’s all about Obama. “Make no mistake,” he said, “[my] policies are on the ballot.” And it’s killing Democrats.”

Oh yes this election matters to the politicians but will it really change the direction out Republic is going or stop the slide of governance away from the vision and Constitution of our Founders? I don’t think so. To me the election is synonymous with arranging the deck chairs on the Titanic.

For the past 100 years the progressive statists have been dragging the Republic away from our cultural, religious, and constitutional roots. The politicians may change, but the masters of the administrative state and academia will remain to carry out their cubicles and classrooms to dictate policy, regulate your lives, tax your earnings, and fill young minds with liberal-progressive clap trap. To change this it will take much more than one election. It may take 5, 10, or 20 elections along with the demise of the academics and statists. It will need a new generation of educated voters steeped in the values of our culture and dedicated to the vision of our Founders to really make a difference and bring our Republic back to the center.

I don’t mean to be a naysayer or negative about this important election, but I am a realists. I have written ad-nauseum about the rise of the administrative state and the power of the statists supported by the liberal progressive agenda along with the corruption of our education system from k12 through the university system. This is a powerful cabal that will be difficult to defeat if we want to return to the roots and visions that made this Republic the greatest nation in the history of the world.

Kathryn Jean Lopez writes on culture for the Heritage Foundation:

“There is no sugarcoating it. With each passing year, on most cultural fronts, things have been getting worse. There is coarseness to our society and a shredding of real ties that bind us to one another. Only about half of Americans are currently married, and about half of the children in the U.S. will spend time outside a household with a married mom and dad. Whatever the circumstances, that has an impact on people and culture, and it shows up in indicators from fertility rates to teen drug use. Our brotherly social safety net is fraying, and we now look to government instead, compounding our problems. After all, bureaucracy doesn’t do love as well as civil society does.

The brave new world of family life today, with seemingly endless prospects for future chaos, makes one nostalgic for the days when we were at least agreed on some of the fundamentals for a good, healthy home environment for children and women and men. Our lack of a common vocabulary and understanding of human nature has made public opinion — and now even our lawmaking and courts—susceptible to wild claims about truth and tolerance in spite of social science evidence about marriage and family to the contrary. Devoid of reason, history, and tradition, these claims simply wouldn’t have made any sense a few decades ago.

As recently as a decade or so ago, a sensitive cultural observer might have referred to “broken homes” without the prospect of a politically correct shutdown. That shutdown of serious dialogue about the direction of our society is a hallmark of what has been dubbed an “Insatiable New Intolerance.” As a powerful, thinly veiled intolerance has established its power—throughout the culture: in education, the entertainment industry, medicine, and politics—the outlook can seem grim for anyone holding traditional views of marriage, family, and life.”

Americans have good reason to be proud of our country’s many achievements in science and technology. The U.S. is home to Silicon Valley, the technology capital of the world, and to 16 of the world’s top 20 scientific universities. Many of the essential devices we use every day such as the television, automobile, airplane, internet, personal computer and smartphone were invented by Americans.

The passion for scientific discovery in America goes all the way back to our nation’s founders, many of whom were deeply engrossed in the sciences as well as the politics of their day. In addition to authoring the Declaration of Independence, Thomas Jefferson was an excellent mathematician and a prolific inventor. Beginning in 1797, Jefferson served as president of the American Philosophical Society, the country’s leading scientific institution.

When he became president of the United States a few years later, Jefferson sent Lewis and Clark to explore the new Louisiana Territory and chart a route to the Pacific Ocean. Before the expedition embarked, Jefferson sent Lewis to Philadelphia for training in medicine and the natural sciences. The president was adamant that Lewis and Clark document every detail of their trip — the people they met, the animals they encountered, the plants they found, and the geology they observed.

The explorers sent many specimens back east to Jefferson, including some live animals (such as a prairie dog and a few magpies). They became the first people to describe a number of plant and animal species for science, including the grizzly bear.

The curiosity of the founding generation of Americans — including such figures as Jefferson, Franklin, Washington, and others — shaped America profoundly. The spirit of discovery became one of the nation’s defining characteristics as Americans rushed west into the frontier, then connected the continent through a busy network of steamships, railroads, and telegraphs. The belief that there was a better future ahead — and that American ingenuity was the key to it all — was an important cultural foundation on which many of the accomplishments we see today were built.

Today, the pioneering sense of excitement about the future has all but disappeared, in part because we are doing a poor job of helping the next generation appreciate the great achievements of our past.

Indeed, for two generations now we have failed to teach American history in our schools, and as a result, many students struggle with the very basics. Just 20 percent of fourth-graders, 17 percent of eighth-graders and 12 percent of twelfth-graders are at grade-level proficiency in American history, according to the Department of Education’s National Assessment of Educational Progress.

A majority of fourth graders don’t know the purpose of the Lewis and Clark expedition, Department of Education data show. Most fourth graders can’t say why the pioneers moved west. And two-thirds don’t understand that westward migration resulted in new states being added to the union.

We must do a better job. If children fail to learn American history, they cannot possibly understand how America became the great country it is today. And more importantly, they won’t be able to help America remain the most pioneering and prosperous nation on earth.

So while this election can be a first step towards returning our Republic to the vision of our Founders it will mean little if we, as a nation, cannot, begin a return to our cultural, religious, and constitutional roots and reverse 100 years of liberal-progressive destruction of these roots. Politicians will follow the will of the people if that will is strong and continuous. Ronald Reagan showed us how to express this will and provide the constitutional leadership this Republic so urgently needs. If we cannot do this than this election is more of a trick than a treat.